The Hawaiian gazette., 1887-09-20
4 intermediary Court of Oahu.
BLFoRE M'CULLY, J.
TUESDAY, September 18th.

IntTre and A. Gomez.
The plaintiffs complain that the
defendant Gomez, the servant of the
defendant Mcintyre, being entrusted
to drive the carriage of the latter,
negligently and unskillfully drove
against, and injured All You, the
plaintiff, wife Of All Sung, co-plain-
tiA 1t is admitted or proven that
the defendant Gomez in pursu
ance of orders drove the defendant
McIntyre's son down town, and left
him and was directed to drive back
to his masters house; that he did not
take the direct route thither but drove
along Hotel street to the west of
Nuuanu street on his way to see
friend of his living near st. Louis
College. By his direct route he
should not have gone west of Nuuanu
street. He was driving rapidly and
Regligently about the distance of a
block out of his route, when he ran
against the plaintiff All You. She
was injured severely, disabling her
from work, and requiring the aid of
nurse.
The sole question in argument be
fore the Court is whether the servant,
in making this detour, on his own
business during which the accident
occurred, was acting within the scope
of his employment. 1 find cases di-
rectly applicable to the facts in this
case. In Joel VS.. Morrison (1S34, 6
4 Sar & Payne SOL, Parke B, held, that
mf7ant driving his masters cart,
masters business, make de
aom the direct road for some
pose of his own, his master
be answerable in damages for
any injury occasioned by his careless
driving while so out of his road But
if a servant takes his masters cart
without leave at q time when he is
not wanted for the purposes of bust
ness and drive it about solely for his
own purposes, the master will not be
answerable. Following this case, in
1889. in 9th Car q Payne COZ Sheath
VS.. Wilson, before Erskine j., a ser
want negGgently drove against the
plaintiff while driving out of his way
on an errand Of his own, in the course
of driving for his master, the master
was held responsible, because he had
put it in the servants power to mis-
manage the carriage by entrusting
him with it.
In the Decisions of the Supreme
Court of the United States, Vol 20,
! p. 294, Philadelphia and Reading r.
R.ACo. VS.. Derby. 1852, the Court
says, the case of Sheath VS.. Wilson,
7 above cited, states the law in such
II cases distinctly and correctly. This
\ Court says, we find no case which
asserts the doctrine, that a master is
not liable for the acts Of a servant In
his employment when the particular
act causing the injury was done in
disregard of the general orders or
special command of the master. Such
a d&Sifcation of respondent superior
woulGIn measure nullify it. This
Court also cites the language of Mr..
Justice Erskine thus: whenever
the master intrusted the servant with
the control Of the carriage, it is no
answer that the servant acted i'm
PROPERLY in the management Of it. Ii
It were it might be commended, that If
a master directs his servant to drive
slowly, and the servant drives fast,
and through his negligence occasions
an injury, the master will not be
liable. But that is not the law. The
I master in such cases Will be liable,
and the ground is, that he has put it
In the servants power to mismanage
the carriage by intrusting him with
y it. The same doctrine with the same
limitation is set forth in Smiths
Master and Servant, supported by the
cases here cited, and many others.
The law is uniform and clear, but
when l come to the matter OF judg-
I mept I find difficulty not touched
NAonSy either counsel, in the joinder
the master and servant, as the de-
attendants.
1t viii be observed that in all the
cases cited the master is the sole de
PENDANT. Upon the authority Of Win
chelI 5 Cush, 500. the action against
Sthe master and servant jointly can
hot be maintained The tort Is not a
Joint one. The master is not liable
as if the acts were done by himself,
but because the law makes him
answerable. says the Court, per Met
calf. j. If the master may have sui
fered judgment and satisfied it, he
NAV call upon the servant for REIN
bursement, but this he cannot do II
the seIyant have been made a CO
defen% mt, as joint tort teasor. The
msster cannot be deprived of this
ffYght, by the plaintiffs act of joining
the servant with him. Error would
lie upon judgment against them as
Joint defendants. Since this case
comes into this Court, as it was
brought and adjudged in the Police
Court, and must be SO brought, ]
here dismiss the complaint.
j. A. Magoon for plaintiffs; ?. Neu-
mann for defendants.